CHAP 3 RESUMED THE RULE EXCLUDING HEARSAY WHAT

CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? Prof. JANICKE 2016

BASIC OPERATION OF THE RULE EXCLUDING HEARSAY 1. 2. 3. 2016 A WITNESS SHOULD TESTIFY WHAT SHE SAW A WITNESS SHOULD USUALLY NOT TESTIFY TO WHAT ANYONE SAID OR WROTE BEFORE TRIAL – THIS INCLUDES WHAT THE WITNESS HERSELF SAID OR WROTE A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED Chap. 3 -- Hearsay Evidence 2

MEANING OF HEARSAY • NO TESTIMONY IS ALLOWED CONCERNING ANY CONVERSATION THAT: – CONTAINS A “STATEMENT” [RECITATION OF PRESENT OR PAST FACT] – WAS MADE OUTSIDE THE PRESENT HEARING – IS OFFERED TO HELP IN PROVING THAT THE FACT STATED IN THE STATEMENT IS TRUE 2016 Chap. 3 -- Hearsay Evidence 3

BIG EXCEPTION • STATEMENTS MADE BY A PARTY, WHEN ELICITED BY THE OPPOSING SIDE’S LAWYER, – FROM ANY WITNESS KNOWLEDGEABLE ABOUT THE PARTY’S STATEMENT • THESE ARE “NOT HEARSAY” R. 801(d) 2016 Chap. 3 -- Hearsay Evidence 4

FOR NON-PARTY UTTERANCES • HEARSAY MEANS AN OUT-OF-COURT “STATEMENT” • I. E. , AN OUT-OF-COURT RECITATION OF A FACT [R 801 (a)] • NOT ALL OUT-OF-COURT UTTERANCES CONTAIN “STATEMENTS”: – PROMISES (“YOU’LL LIKE IT”) DON’T 2016 – COMMANDS (“GET OUT OF HERE”) DON’T Chap. 3 -- Hearsay Evidence 5

EXAMPLES OF OUT-OFCOURT “STATEMENTS” • “IT’S SUNNY HERE” RECITES A FACT • “IT RAINED YESTERDAY” RECITES A FACT • “I LOVE YOU” RECITES A FACT • THESE ARE POTENTIALLY HEARSAY IF A WITNESS LATER TESTIFIES TO WHAT WAS SAID 2016 Chap. 3 -- Hearsay Evidence 6

MOST DOCUMENTS ARE LOADED WITH STATEMENTS, AND THUS PRESUMPTIVELY CONTAIN HEARSAY – E. G. : MEMO THAT SAYS: “WE GOT SOME FLOODING” – E. G. : LETTER THAT SAYS: “YOU AND I MET LAST MONTH ON THE SUBJECT OF A MERGER” – ALL DOCUMENTS SHOULD BE THOUGHT OF AS PRESUMPTIVELY CONTAINING STATEMENTS, AND THEREFORE LIKELY INADMISSIBLE HEARSAY – MAIN EXCEPTIONS: 2016 • OTHER SIDE’S WRITINGS • OPERATIVE FACT DOCUMENTS (CONTRACT; LEASE; WILL) Chap. 3 -- Hearsay Evidence 7

NOTE: THE SAME FACTS CAN AND SHOULD BE TESTIFIED TO BY A LIVE WITNESS WITH KNOWLEDGE • WITNESS CAN TESTIFY “WE GOT SOME FLOODING, ” NOT: “HE SAID WE GOT SOME FLOODING” • WITNESS CAN TESTIFY “WE MET ON THE SUBJECT OF A MERGER, ” NOT : THE MEMO STATED WE MET ON THE SUBJECT OF A MERGER” 2016 Chap. 3 -- Hearsay Evidence 8

THIS IS THE WHOLE POINT OF THE HEARSAY RULE – IT’S THE MANNER OF PROOF THAT IS BLOCKED BY THE HEARSAY RULE, NOT THE SUBSTANCE – WE WANT TO HEAR IT LIVE, AND SUBJECT TO CROSSEXAMINATION 2016 Chap. 3 -- Hearsay Evidence 9

THIS IS THE WHOLE POINT OF THE HEARSAY RULE – IT’S THE MANNER OF PROVING A FACT THAT IS BLOCKED BY THE HEARSAY RULE, NOT THE SUBSTANCE OF THE FACT – WE WANT TO HEAR IT LIVE, AND SUBJECT TO CROSS-EXAMINATION 2016 Chap. 3 -- Hearsay Evidence 10

RULE 802 SAYS OUT-OF-COURT STATEMENTS USUALLY CANNOT BE TESTIFIED TO • NOR CAN ANY DOCUMENT CONTAINING A STATEMENT OF FACT BE INTRODUCED, GENERALLY • BUT: SUCH TESTIMONY OR DOCUMENT MIGHT FIT UNDER A HEARSAY EXCEPTION, AND CAN THEN BE INTRODUCED 2016 Chap. 3 -- Hearsay Evidence 11

RULE 802 – “THE RULE AGAINST HEARSAY” • HEARSAY EVIDENCE [WHAT A NONPARTY STATED OUT OF COURT] IS USUALLY INADMISSIBLE TO PROVE FACTS • BUT FIRST-HAND TESTIMONY OF THE FACTS MAY WELL BE ADMISSIBLE 2016 Chap. 3 -- Hearsay Evidence 12

WHEN IS OUT-OF-COURT CONDUCT A “STATEMENT”? • CONDUCT IS REGARDED AS A STATEMENT FOR HEARSAY PURPOSES ONLY IF • WHEN ACTOR’S PRIMARY PURPOSE WAS DIRECTLY TO NARRATE (RECITE) FACTS [R 801 (a)] >>> 2016 Chap. 3 -- Hearsay Evidence 13

• THE VAST MAJORITY OF HUMAN CONDUCT (99%) IS NOT DONE FOR THIS PURPOSE • IT IS TO GET ON WITH LIFE! • THEREFORE, NO STATEMENT AND NO HEARSAY IN LATER TESTIMONY TO THE CONDUCT 2016 Chap. 3 -- Hearsay Evidence 14

• EXAMPLES OF THE 1% CONDUCT THAT IS A STATEMENT: 1. NOD OR SHAKE OF HEAD FOR YES OR NO 2. POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3. REENACTMENTS 2016 Chap. 3 -- Hearsay Evidence 15

EXAMPLE OF CONDUCT THAT IS NOT A STATEMENT • ACTION ON MARINE INSURANCE POLICY – MAIN ISSUE: SEAWORTHINESS OF VESSEL LATER LOST AT SEA – EVIDENCE: TESTIMONY THAT AN EXPERIENCED CAPTAIN INSPECTED THOROUGHLY, THEN TOOK HIS FAMILY ABOARD AND SET SAIL 2016 Chap. 3 -- Hearsay Evidence 16

FURTHER EXAMPLE OF CONDUCT THAT IS NOT A STATEMENT • WILL PROBATE – MAIN ISSUE: TESTATOR’S SANITY – EVIDENCE: TESTIMONY THAT LOCALS SOMETIMES LAUGHED AT HIM, CHECKED UP ON HIM, WOULD NOT ENGAGE HIM IN ANY SERIOUS ENTERPRISE 2016 Chap. 3 -- Hearsay Evidence 17

• THESE ACTORS WERE NOT INTENDING TO NARRATE! • WE MAY SEE THEIR CONDUCT AS FULL OF FACTUAL MEANING; BUT THAT IS NOT THE SAME AS A MAIN INTENT TO NARRATE 2016 Chap. 3 -- Hearsay Evidence 18

FURTHER EXAMPLES OF CONDUCT THAT IS NOT A STATEMENT (NONNARRATIVE) • PROMOTING A LIEUTENANT TO CAPTAIN • GIVING AN EMPLOYEE A BONUS • PUTTING PATIENT IN I. C. U. • THROWING WINE IN HIS FACE, AND LEAVING THE RESTAURANT 2016 – [THIS ONE MAY BE ARGUABLE. IS HER MAIN INTENT TO NARRATE? ? ] Chap. 3 -- Hearsay Evidence 19

CAN YOU THINK OF ANY OTHER EXAMPLE OF CONDUCT THAT IS A “STATEMENT”? • OTHER THAN SIGNING, NODDING HEAD, POINTING, REENACTMENTS • IT HAS TO BE AN ACTION THAT IS INTENDED TO DIRECTLY STATE A FACT ---– eye contact + [H, C, Do. Kn, Ca. Se/Ca. He, OK] 2016 Chap. 3 -- Hearsay Evidence 20

WORDS THAT GIVE MEANING TO CONDUCT ARE NOT STATEMENTS • EXAMPLE: HANDING OVER CASH, AND SAYING “THIS IS FOR THE JULY RENT” • EXAMPLE: HANDING CAR KEYS, AND SAYING “IT’S IN THE GARAGE” 2016 Chap. 3 -- Hearsay Evidence 21

• THEREFORE, A WITNESS CAN TESTIFY TO THE ACTOR’S CONDUCT AND THE ACTOR’S WORDS • NO STATEMENT = NO HEARSAY 2016 Chap. 3 -- Hearsay Evidence 22

2 RULES OF THUMB 1. MIXED WORDS AND CONDUCT: – TREAT AS CONDUCT 2. THEN, IF YOU CAN’T DECIDE ACTOR’S INTENTION (WAS SHE MAINLY INTENDING TO NARRATE? ): TREAT AS A NONSTATEMENT 2016 Chap. 3 -- Hearsay Evidence 23

HANDLING VERY SHORT SETS OF WORDS – – – “CORONA” ON BEER MUG “PORSCHE” ON CAR “PLAZA CLUB RESTAURANT” LAUNDRY MARK “JAN” “UNIVERSITY OF HOUSTON” ON ENTRANCEWAY • THESE ARE REGARDED AS MERE MARKERS, NOT STATEMENTS • THEREFORE CANNOT BE HEARSAY 2016 Chap. 3 -- Hearsay Evidence 24

PROBLEMS/CASES • • 2016 3 A 3 B CAIN CHECK Chap. 3 -- Hearsay Evidence 25

“OFFERED TO PROVE THE TRUTH OF THE STATEMENT” • 2016 SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY PER R. 802 Chap. 3 -- Hearsay Evidence 26

EXAMPLES OF USING STATEMENTS FOR OTHER PURPOSES 1. IMPEACHING A WITNESS – E. G. : PRIOR INCONSISTENT STATEMENT – DOES NOT COME IN FOR ITS TRUTH 2016 Chap. 3 -- Hearsay Evidence 27

2. WORDS THAT ARE THEMSELVES A NECESSARY ELEMENT OF THE CASE – E. G. : FALSE OFFICIAL STATEMENT – E. G. : OFFER AND ACCEPTANCE IN CONTRACT CASE – E. G. : WARRANTIES IN BREACH OF WARRANTY CASE 2016 – SOMETIMES CALLED “RES GESTAE” – SOMETIMES CALLED WORDS THAT ARE AN “OPERATIVE FACT” – M-K CALL THIS A “VERBAL ACT” Chap. 3 -- Hearsay Evidence 28

3. PROVING THE LISTENER’S STATE OF MIND THAT IS RELEVANT TO THE CASE OR DEFENSE, i. e. , WHERE STATE OF MIND MATTERS • TESTIMONY THAT X SAID TO D: “I HAVE A GUN THAT IS POINTED AT YOU” – – • TESTIMONY THAT X SAID TO D: “THESE T. V. SETS ARE STOLEN” – – 2016 SELF-DEFENSE REQUIRES PROOF OF ACTOR’S STATE OF MIND TRUTH OF THE STATEMENT HAS NOTHING TO DO WITH IT IF THE TRIAL IS FOR RECEIVING, KNOWLEDGE IS AN ELEMENT CAVEAT: LIMITED OFFER WILL BE ENFORCED! Chap. 3 -- Hearsay Evidence 29

• TESTIMONY THAT X SAID TO D: “THE BRAKES ON YOUR CAR ARE BAD” OFFERED TO SHOW D’S NEGLIGENCE IN DRIVING THE CAR – NEGLIGENCE IS A STATE OF MIND • CAN AN UNCONSCIOUS PERSON ACT “NEGLIGENTLY”? NO. 2016 Chap. 3 -- Hearsay Evidence 30

• TESTIMONY THAT NON-PARTY X SAID TO PLAINTIFF: “THE BRAKES ON D’S CAR ARE BAD” OFFERED TO SHOW PLAINTIFF’S ASSUMPTION OF RISK IN RIDING IN D’S CAR – ASSUMPTION OF RISK IS A STATE OF MIND • CAN AN UNCONSCIOUS PERSON ASSUME A RISK WHILE UNCONSCIOUS? NO. 2016 Chap. 3 -- Hearsay Evidence 31

THE TWO KEYS: • NO STATEMENT = NO HEARSAY • NOT OFFERED TO ESTABLISH TRUTH OF THE STATEMENT = NOT HEARSAY 2016 Chap. 3 -- Hearsay Evidence 32

PROBLEMS/CASES • • • 3 C 3 D 3 E 3 F 3 G 3 H (cont’d) 2016 Chap. 3 -- Hearsay Evidence 33

• 3 J • PACELLI • BETTS 2016 Chap. 3 -- Hearsay Evidence 34

THE HEARSAY QUIZ IN M-K [pp. 182 -184] • APPLY THE DEFINITIONAL EXCEPTIONS IN R 801(d) IF APPLICABLE • SOME LAWYERS START WITH 801(d) ANALYSIS, TO SAVE TIME – IF YOU FIND IT IN 801(d), IT CAN’T BE HEARSAY – NO WORRY ABOUT WHY IT’S OFFERED 2016 Chap. 3 -- Hearsay Evidence 35

SUGGESTED MENTAL SEQUENCE 1. CHECK 801(d) – NOT HEARSAY 2. IS THE WIT. TESTIFYING ABOUT A STATEMENT? 3. IS THE TEST. OFFERED TO PROVE THAT THE STMT. WAS TRUE? • IF SO, THE TEST. IS BRINGING IN HEARSAY 4. IS THERE AN APPLICABLE EXCEPTION TO THE RULE? 2016 Chap. 3 -- Hearsay Evidence 36

• M-K HEARSAY QUIZ, Q&A ---- 2016 Chap. 3 -- Hearsay Evidence 37